Untitled Texas Attorney General Opinion ( 1945 )

- - _"-.1
:rrIHlE A'T"'I"ORNEY GENERAL 175
0111" ~"'EXAS
AUSTIN 1.1., TEXAI!it
sonorabJ.:e 1[. 1[. Smith
Oounty Atterney
Oarson County
1'anhand1e I Texas
De~r Sir: Opinion Bo". 0-6640
:Bel ' Author1tyof oounty judge or oth,r
offioers other than Justices of the
peace ~o hold inquests. ,
from your letter of reoe~t aste we are apprised, that in your oounty at
this time "you hav~ no legeU:! Ilu.sl!f!_ sud ~v8ilable ~ustic~~ of ~he
peace. Y9u submit the followd.ng questions (as , restated by us) s
. ' , ' , I .• ' ', • . ,
1. Where there is no quslified ~ustioe ". or ,'\Ihe pea 0, ,
and it beoolles necessary to ho14 an' 1D.tuest" ~.n the .
oounty judge perform this funot1~nt '
2. If the county judge would not be a'u thorh,d to ':1
hold an intuest uncler such oircumatslloeaaa . '
reterred tom ques~ionl,whst oth$roff1cer, if
any, would .be authorized. to hold ' the tilquestt
ll!i,tle l~ of 'tme Code ot Criminal ProoedUl'e of Texa. (.A:rt101e8 968-
996) is the authority for the b,01d1ng of mquests in this Stat.,
both over dead bodies to determine the cause of 4eath and ~ afire
inquests" to e;xam~e into the unlawful firing of bl.UU.dinga.
~ In every 1utanCl)e in. Said Title 13 where reference 1& made as to the
!:diVidual holding such inquests it is a "justice of the peao .n
~ the reference fa not gene~al - it is speeifio. JOr ' j,nstance, in
~e verY' first article is 811i4 'itle, providiJ?g, Vb.en inquests over
Bad bodiee are to be held, the lamguage l"eads I .. A11'3' Juetice ot the
~t~C.! shall be authorized:, and it shall be ~ ~uty to hold inquests
hout e jUry wi thin his oounty," etc. So on through the suoceeding
:h;lales re~tive to ~d1sinterm~t of bodies, the oalling in of"
a Sioiaus, the facts upon whioh the offioer may aot., the issuanoe
o~d servioe of prooess, the pre8ervat1~ of te.t1mo~, the keep1ng
6'1'\ recortis 8n,.d the oe:r:t1fioat10n of pl"0oeedtnga, the person aot1ng 1s
s.lfeaif 1ed es" the Justice", "a Justioe'l 01' "justices of' the peaoe."
)0 as to fire inquests - ~en an affidavit 1s made by e oredible
arson before any ~ustice of the peaoe," etc.
176
Honorable H. H. Smith - page #2 (0-6640)
No other officer is mentioned in any article of the Code 8S being
authorized, required, or permitted to serve in the capacity of the
justice of the peace in holding inquests.; nor is provision made
for substitution of any other officer to perform such duties.
The object of the statute providing for inquests is to aid in the
enforcement of the law by the the detection of crime, and in each
case, to determine whether an offense has been committed. This is
the sale purpose. Polk County v. Phillips, 92 Tex. 630, 51 S. w. 328.
The authority of a justice of the peace to hold an ~quest is derived
exclusively from the provisione of the Code of Criminal Procedure we
hBve mentioned. The acts of the jUstice in such cases ~re official
acts. When a justice of the peace performs official duties in connectioll
ther'ewith, his allthority faows from the statutes and must be in confor-
mity with the statutory regulations. See Aetna Casualty & Surety
Company v. Love (Tex. Comm. 'App., opinion adopted by Supreme Court) 132
Tex. 280, 121 S.W.2d 986.
We have carefully examined constitutional and statutll>ry provisions
relating to the office of county juQ,ge. Now here do We find provisions
for his acting in the c8'pac1ty of a coroner to hold inquests. Nor do
we know of any provision for any ' other officer to exercise the
prerogatives and to perform the duties imposed by law ' iri this respect.
Justices of the peace alone appear ,to have the duty, right, power and
authority to preside at inquests.
In Texas Jurisprudence (34 Tex.~Jur. 439, 440) appear statements, amply
sllPported by cited authorities, \rhich we deem applicable to your questtons
we quote:
"* * * Power and d~ties are coextensive, and an officer
has no authority to perform an act in respect of which no
duty has been made to devolve upon him.
"* **
"Public officers * * * possess enl.y such powell'S as are
expressly conferred upon them by law or are necessarily
ipWlied from the powers so conferred. They cannot
perf@rm acts net authorized by existing law) and the
repeal of a statute a~thorizing an officer to do a
particular thing, or of the statute that creates the
office, necessarily revokes and terminates his power. It
(Emphasis supplied)
Therefore, we answer both of your questi<;>n8 in the negative.
Honorable H. H. Smith - page #3 (0-6640)
In the state of affairs existing in your county, the only solution,we
are able to offer is to direct your attention to the fact that ample
authority exists for the filling of the vacancies in the several offices
of your justices of the peace. See Article 5, Sec. 28, Constitution of
Texas s "'IE' * * vacancies in the office of County Judge and justices if the
peace shall be filled by the Commissioners Court until the next general
election for such offices." See also, Article 2355, Revised Civil
Statutes, which prescribes the method of filling the vacancies.
Yours very truly
A~ORNEY GENERAL OF TEXAS
s/ :aenjamin Wooda 11
By
Benjamin Wooda 11
Assistant
:m:za./ldW
APPROVED JON 27, 1945
s/ Grover Sellers ..
A~ORNEY GENERAL· OF TEXAS
APPROVED ,
'-.
. OPINION
COMMITrEE
BY B. W. B.
CHAIRMAN